United States v. Watson, 69 Cr. 64(1).

• Decision Date: 30 June 1970
• Docket Number: No. 69 Cr. 64(1).,69 Cr. 64(1).
• Citation: 314 F. Supp. 483
• Parties: UNITED STATES of America, Plaintiff, v. Richard Leslie WATSON, Defendant.
• Court: U.S. District Court — Eastern District of Missouri

314 F. Supp. 483

UNITED STATES of America, Plaintiff, v. Richard Leslie WATSON, Defendant.

No. 69 Cr. 64(1).

United States District Court, E. D. Missouri, E. D.

June 30, 1970.

COPYRIGHT MATERIAL OMITTED

Daniel Bartlett, Jr., U. S. Atty., James M. Gordon and Peter T. Straub, Asst. U. S. Attys., St. Louis, Mo., for plaintiff.

Louis Gilden, St. Louis, Mo., for defendant.

MEMORANDUM OPINION

HARPER, District Judge.

The defendant was charged by an indictment returned March 20, 1969, with a violation of the Universal Military Training and Service Act, 50 U.S.C. App. § 462, for willfully and knowingly failing to comply with an order of the Local Board to report for and submit to induction into the Armed Forces of the United States. Defendant was represented by his attorney and pleaded not guilty on May 26, 1969. Defendant's refusal was based upon his claim that Selective Service authorities should have exempted him. Defendant waived jury trial, and the cause was heard on July 10, 1969. Defendant has filed a motion for judgment of acquittal and the same is now before the court.

The defendant registered with the Selective Service System on February 20, 1967, and was classified I-A on March 8, 1967. On May 3, 1968, the defendant was found acceptable for military service. On August 7, 1968, defendant was ordered to report for induction on September 20, 1968. On September 17, 1968, defendant submitted a physician's statement that defendant's wife was pregnant, and also requested and received the appropriate form for a claim of conscientious objection. On that date, the Local Board clerk informed defendant that the pregnancy of his wife would not affect his classification. On September 20, 1968, defendant returned the completed conscientious objector form. Also, on September 20, 1968, defendant reported for but refused to submit to induction in the Armed Forces.

On October 9, 1968, the State Director, by letter, authorized the Local Board to review and consider the information submitted by the defendant with respect to his claim of conscientious objection. By letter of November 6, 1968, the United States Attorney recommended that the Local Board postpone defendant's induction, invite defendant in for a courtesy interview, and determine when defendant's conscientious objector beliefs matured and whether or not defendant was sincere in his beliefs; and to decline to reopen defendant's classification if defendant was found to be insincere or if his views were found to have matured prior to the order to report for induction. On November 19, 1968, the State Director authorized a postponement of induction until the matters under consideration contained in the November 6th letter of the United States Attorney were resolved.

Defendant was invited to an interview before the Local Board and was interviewed on December 11, 1968. The entry in defendant's file pertaining to the interview of December 11th, states in part:

"Registrant was questioned as to when he first believed he was actually a Conscientious Objector. Mr. Watson made statement it was in July, 1968. He was introduced to the minister of `World Wide Church of God', located in Belleville, Illinois. At this time he first formed the belief that he was a Conscientious Objector. Then began attending church services at this church and has continued to attend."

The decision of the Local Board was that defendant's classification should not be reopened and that he should be ordered to reopen for induction.

On December 20, 1968, defendant was ordered to report for induction on January 16, 1969. On December 26, 1968, defendant requested a personal appearance before the Local Board for the purpose of appealing his classification. The request was denied on December 30, 1968. Defendant wrote the State Director on January 3, 1969, requesting a personal appearance before the Local Board, and the same was denied on January 8, 1969. On January 16th defendant reported for but refused to submit to induction into the Armed Forces.

Defendant has asserted thirteen grounds in support of his motion for acquittal, which basically present five issues in which defendant claims there was no basis in fact for the classification given him and that he was denied due process of the law.

Defendant contends that his induction order was unauthorized because the Local Board failed to convene to select defendant for induction and that such selection is beyond the jurisdiction of the Board clerk.

Selective Service Regulation 32 C.F.R. 1631.7 describes the action to be taken by a local board upon receipt of notice of call. Two provisos in that section state that certain delinquent and volunteer registrants may be selected to fill the call for induction. Both provisos state that such a delinquent or volunteer may be selected "notwithstanding the fact that he has not been found acceptable for service in the Armed Forces * * *." The section goes on to set out a mandatory order of induction.

Whatever discretion in the Local Board is allowed by the two provisos is not relevant here. The minutes of the Local Board show that defendant was classified I-A by a vote of the Local Board on March 8, 1967. Defendant was found acceptable by his physical examination and was so notified. He clearly is not within the terms of the provisos. The section specifically provides for a mandatory order of selection for induction ("* * * shall be selected and ordered to report for induction in the following order * * *." 32 C.F. R. § 1631.7).

It was proper for a notice of induction to be sent to defendant. There is no doubt that the Local Board may authorize a clerk to sign and mail an induction order. The very specific and detailed provisions in Section 1631.7 as to the order of call leave nothing to the discretion of the Local Board. Once the registrant has been found to be acceptable and has been notified of that fact, the procedure of selection is routine. The Military Selective Service Act of 1967 denies discretionary power to vary the order of selection and induction (50 U.S.C. App. § 455(a) (2).)

Defendant contends that the Local Board failed to notify the defendant of the availability of an appeal agent and that such failure was error. 32 C.F.R. § 1604.71(a) requires that a Government Appeal Agent be appointed for each Local Board. Local Board Memorandum No. 82 issued March 6, 1967, provides:

"Whenever a local board places a registrant in either Class I-A, I-A-O or I-O, it shall, at the time the Notice of Classification (SSS Form 110) is mailed, also inform the registrant that the Government Appeal Agent is available to advise him on matters relating to his legal rights, including his right of appeal."

On March 8, 1967, defendant was classified I-A and so notified on March 10, 1967, by SSS Form 110. SSS Form 110 (Government's Exhibit 2) contains a full Notice of Right to Personal Appearance and Appeal, but does not specifically mention an appeal agent. Missouri Form 6 (Government's Exhibit 3) is a clear notice of the registrant's rights concerning the appeal agent.

There seems to be some confusion in the Local Board clerk's testimony as to whether Missouri Form 6 was sent to defendant. In rebuttal, the government introduced Exhibits 2 and 3 and the clerk testified that the very same type of forms had been mailed to defendant on March 10, 1967. There is no denial by defendant that he received the forms. Indeed, nowhere in his testimony does defendant ever say that he was not informed of the availability of the Government Appeal Agent. His assertion that he was not so advised is not supported by the evidence.

Defendant contends that the Local Board's failure to consider the information that defendant's wife was pregnant and that his induction would cause extreme hardship was error and a denial of due process. On August 7, 1968, defendant received an order to report for induction on September 20, 1968. On September 17, 1968, defendant notified the Local Board that his wife was pregnant by filing a statement by a doctor to that effect. The evidence is that the Local Board clerk told the defendant at that time that his classification would not be affected by his wife's pregnancy.

32 C.F.R. § 1622.30(c) (3) provides:

"No registrant shall be placed in Class III-A * * * because he has a child which is not yet born unless prior to the time the local board mails him an order to report for induction which is not subsequently cancelled there is filed with the local board the certificate of a licensed physician * * *."

The defendant had already received an order to report for induction, and that order was not cancelled. 32 C. F.R. § 1622.30(c) precluded the notice of pregnancy from operating as a bar to defendant's induction three days later.

Moreover, the simple assertion that his wife was pregnant would not in and of itself entitle defendant to a hardship deferment. The doctor's statement was not prima facie evidence of hardship. It is a fact that may or may not support a claim for a hardship deferment. Defendant did not request a reclassification on that ground, and did not supply any facts in addition to the doctor's statement which would tend to indicate a claim for hardship deferment was being made.

Defendant argues that the Local Board clerk, in telling the defendant that his wife's pregnancy would not affect his classification, so thwarted and discouraged him from presenting additional evidence supporting a hardship claim as to amount to a physical blocking of the filing of the information. The board clerk could not have prevented the defendant from providing more information with regard to his claim. In this case we are not dealing with a registrant who was ignorant of his rights under the rules and regulations of the Selective Service System. The record shows that the defendant was acting pursuant to an attorney's advice at least from September 17, 1968. While it is conceivable that a registrant might be...